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South Africa
NATIONAL LEGISLATION OVERVIEWS
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Children’s Act, No. 38 of 2005

Long title


To give effect to certain rights of children as contained in the Constitution; to set out principles relating to the care and protection of children; to define parental responsibilities and rights; to make further provision regarding children's courts; to provide for partial care of children; to provide for early childhood development; to provide for the issuing of contribution orders; to provide for prevention and early intervention; to provide for children in alternative care; to provide for foster care; to provide for child and youth care centres and drop-in centres; to make new provision for the adoption of children; to provide for inter-country adoption; to give effect to the Hague Convention on Inter-country Adoption; to prohibit child abduction and to give effect to the Hague Convention on International Child Abduction; to provide for surrogate motherhood; to create certain new offences relating to children; and to provide for matters connected therewith.

Table of contents

SECTION TITLE

PREAMBLE

TABLE OF CONTENTS

CHAPTER 1. INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION OF ACT
1.  Interpretation
2.  Objects of Act
3.  Conflicts with other legislation
4.  Implementation of Act
5.  Inter-sectoral implementation of Act

CHAPTER 2. GENERAL PRINCIPLES
6.  General principles
7.  Best interests of child standard
8.  Application
9.  Best interests of child paramount
10.  Child participation
11.  Children with disability or chronic illness
12.  Social, cultural and religious practices
13.  Information on health care
14.  Access to court
15.  Enforcement of rights
16.  Responsibilities of children
17.  Age of majority

CHAPTER 3. PARENTAL RESPONSIBILITIES AND RIGHTS

Part 1. Acquisition and loss of parental responsibilities and rights
18.  Parental responsibilities and rights
19.  Parental responsibilities and rights of mothers
20. Parental responsibilities and rights of married fathers
21.  Parental responsibilities and rights of unmarried fathers
22.  Parental responsibilities and rights agreements
23.  Assignment of contact and care to interested person by order of court
24.  Assignment of guardianship by order of court
25.  Certain applications regarded as inter-country adoption
26.  Person claiming paternity
27.  Assignment of guardianship and care
28.  Termination, extension, suspension or restriction of parental responsibilities and rights
29. Court proceedings

Part 2. Co-exercise of parental responsibilities and rights
30. Co-holders of parental responsibilities and rights
31. Major decisions involving child
32. Care of child by person not holding parental responsibilities and rights

Part 3. Parenting plans
33. Contents of parenting plans
34. Formalities
35. Refusal of access or refusal to exercise parental responsibilities and rights

Part 4. Miscellaneous
36. Presumption of paternity in respect of child born out of wedlock
37. Refusal to submit to taking of blood samples
38. Effect of subsequent marriage of parents on child
39. Rights of child born of voidable marriage
40. Rights of child conceived by artificial fertilisation
41. Access to biographical and medical information concerning genetic parents

CHAPTER 4. CHILDREN'S COURTS

Part I. Establishment, status and jurisdiction
42. Children's courts and presiding officers
43. Status
44. Geographical area of jurisdiction of children's court
45. Matters children's court may adjudicate
46. Orders children's court may make
47. Referral of children by other court for investigation
48. Additional powers
49. Lay-forum hearings
50. Investigations
51. Appeals

Part 2. Court proceedings
52. Rules and court proceedings
53. Who may approach court
54. Legal representation
55. Legal representation of children
56. Attendance at proceedings
57. Compulsory attendance of persons involved in proceedings
58. Rights of persons to adduce evidence, question witnesses and produce argument
59. Witnesses
60. Conduct of proceedings
61. Participation of children
62. Professional reports ordered by court
63. Evidence
64. Adjournments
65. Monitoring of court orders
66. Protection of court case records
67. Appointment or designation of clerks of children’s courts
68. Referral of matters by clerk of children’s court

Part 3. Pre-hearing conferences, family group conferences, other lay-forums and settling matters out of court
69. Prehearing conferences
70. Family group conferences
71. Other lay-forums
72. Settling of matters out of court
73. Other functions

Part 4. Miscellaneous matters
74. Publication of information relating to proceedings
75. Regulations

CHAPTER 5. PARENTAL CARE
76.  Partial care [...inserted by Act 2007_041_004]
77.  Strategy concerning partial care[...inserted by Act 2007_041_004]
78.  Provision of partial care [...inserted by Act 2007_041_004]
79.  National norms and standards for partial care [...inserted by Act 2007_041_004]
80.  Partial care facility to be registered [...inserted by Act 2007_041_004]
81.  Application for registration and renewal of registration [...inserted by Act 2007_041_004]
82.  Consideration of application [...inserted by Act 2007_041_004]
83. Conditional registration [...inserted by Act 2007_041_004]
84.  Cancellation of registration [...inserted by Act 2007_041_004]
85.  Notice of enforcement [...inserted by Act 2007_041_004]
86. Appeal against and review of certain decisions [...inserted by Act 2007_041_004]
87.  Record and inspection of and provision of partial care facility [...inserted by Act 2007_041_004]
88.  Assignment of functions to municipalities [...inserted by Act 2007_041_004]
89.  Serious injury, abuse or death of child in partial care facility [...inserted by Act 2007_041_004]
90.  Regulations [...inserted by Act 2007_041_004]

CHAPTER 6. EARLY CHILDHOOD DEVELOPMENT
91.  Early childhood development [...inserted by Act 2007_041_004]
92.  Strategy concerning early childhood development [...inserted by Act 2007_041_004]
93.  Provision of early childhood development programmes [...inserted by Act 2007_041_004]
94.  National norms and standards for early childhood development programmes [...inserted by Act 2007_041_004]
95. Early childhood development programmes to be registered [...inserted by Act 2007_041_004]
96. Application of registration and renewal of registration [...inserted by Act 2007_041_004]
97. Consideration of application [...inserted by Act 2007_041_004]
98. Conditional registration [...inserted by Act 2007_041_004]
99. Cancellation of registration [...inserted by Act 2007_041_004]
100. Notice of enforcement [...inserted by Act 2007_041_004]
.
SECTION TITLE
101. Appeal against and review of certain decisions [...inserted by Act 2007_041_004]
102.  Assignment of functions to municipality [...inserted by Act 2007_041_004]
103.  Regulations [...inserted by Act 2007_041_004]

CHAPTER 7. PROTECTION OF CHILDREN

Part 1. Child protection system
104. Strategy concerning child protection [...inserted by Act 2007_041_004]
105. Provision of designated child protection services [...inserted by Act 2007_041_004]
106. National norms and standards for child protection [...inserted by Act 2007_041_004]
107. Designation of child protection organisation [...inserted by Act 2007_041_004]
108. Existing child welfare organisation [...inserted by Act 2007_041_004]
109. Withdrawal of designation [...inserted by Act 2007_041_004]
110. Reporting of abused or neglected child and child in need of care and protection [...inserted by Act 2007_041_004]

Part 2. National Child Protection Register
111.  Keeping of National Child Protection Register
112.  Confidentiality of National Child Protection Register

Part A of Register
113.  Purpose of Part A of Register
114.  Contents of Part A of Register
115.  Access to Part A of Register
116.  Disclosure of information in Part A of Register
117.  Inquiries on information in Part A of Register

Part B of Register
118.  Purpose of Part B of Register
119.  Contents of Part B of Register
120. Finding persons unsuitable to work with children
121.  Disputes concerning findings
122.  Findings to be reported to Director-General
123.  Consequences of entry of name in Part B of Register
124.  Disclosure of entry of name in Part B of Register
125.  Access to Part B of Register
126.  Establishment of information in Part B of Register
127.  Disclosure of names in Part B of Register prohibited
128.  Removal of name from Register
128A.  Enquiries for purposes of expungement applications in terms of Criminal Procedure Act [...inserted by Act 2013_042_030_20140122]

Part 3. Protective measures relating to health of children
129. Consent to medical treatment and surgical operation
130. HIV-testing
131. HIV-testing for foster care or adoption purposes
132. Counselling before and after HIV-testing
133. Confidentiality of information on HIV/AIDS status of children
134. Access to contraceptives

Part 4. Other protective measures
135. Application to terminate or suspend parental responsibilities and rights [...inserted by Act 2007_041_005]
136. Consideration of application to terminate or suspend parental responsibilities and rights [...inserted by Act 2007_041_005]
137. Child-headed household [...inserted by Act 2007_041_005]
138. Unlawful removal or detention of child [...inserted by Act 2007_041_005]
139. Unlawful taking or sending of child out of Republic [...inserted by Act 2007_041_005]
140. Child safety at place of entertainment [...inserted by Act 2007_041_005]
141. Child labour and exploitation of children [...inserted by Act 2007_041_005]
142. Regulations

CHAPTER 8. PREVENTION AND EARLY INTERVENTION
143. Prevention and early intervention programmes [...inserted by Act 2007_041_007]
144. Purposes of prevention and early intervention programmes [...inserted by Act 2007_041_007]
145. Strategy for securing prevention and early intervention programmes [...inserted by Act 2007_041_007]
146. Provision of prevention and early intervention programmes [...inserted by Act 2007_041_007]
147. National norms and standards for prevention and early intervention programmes [...inserted by Act 2007_041_007]
148. Court may order early intervention programme [...inserted by Act 2007_041_007]
149. Report to include summary of prevention and early intervention programmes [...inserted by Act 2007_041_007]

CHAPTER 9. CHILD IN NEED OF CARE AND PROTECTION

Part 1. Identification of child in need of care and protection
150. Child in need of care and protection care by court order
151. Removal of child to temporary safe
152. Removal of child to temporary safe care without court order
152A. Review of decision to remove child without court order [...inserted by Act 2016_017_006_20170119]
153. Written notice to alleged offender
154. Other children in need of care and protection

Part 2. Children’s court processes
155. Decision of question whether child is in need of care and protection
156. Orders when child is found to be in need of care and protection
157. Court orders to be aimed at securing stability in child’s life
158. Placement of child in child and youth care centre
159. Duration and extension of orders
160. Regulations

CHAPTER 10. CONTRIBUTION ORDER
161. Issue of contribution order
162. Jurisdiction
163. Effect of contribution order
164. Payments to be made to person determined by court
165. Attachment of wages of respondent
166. Change of residence or work by respondent

CHAPTER 11. ALTERNATIVE CARE
167. Alternative care [...inserted by Act 2007_041_010]
168.  Leave of absence [...inserted by Act 2007_041_010]
169. Child in alternative care prohibited from leaving Republic [...inserted by Act 2007_041_010]
170. Child absconding from alternative care [...inserted by Act 2007_041_010]
171. Transfer of child in alternative care [...inserted by Act 2007_041_010]
172. Change in residential care programme [...inserted by Act 2007_041_010]
173. Removal of child already in alternative care [...inserted by Act 2007_041_010]
174. Provisional transfer from alternative care [...inserted by Act 2007_041_010]
175. Discharge from alternative care [...inserted by Act 2007_041_010]
176. Remaining in alternative care beyond age of 18 years [...inserted by Act 2007_041_010]
177. Appeal against and review of certain decisions [...inserted by Act 2007_041_010]
178. Serious injury, abuse or death of child in alternative care [...inserted by Act 2007_041_010]
179. Regulations [...inserted by Act 2007_041_010]

CHAPTER 12. FOSTER CARE
180. Foster care [...inserted by Act 2007_041_010]
181. Purposes of foster care [...inserted by Act 2007_041_010]
182. Prospective foster parents [...inserted by Act 2007_041_010]
183. Cluster foster care [...inserted by Act 2007_041_010]
184. Determination of placement of child in foster care [...inserted by Act 2007_041_010]
185. Number of children to be placed in foster care per household [...inserted by Act 2007_041_010]
186. Duration of foster care placement [...inserted by Act 2007_041_010]
187. Reunification of child with biological parent [...inserted by Act 2007_041_010]
188. Responsibilities and rights of foster parent [...inserted by Act 2007_041_010]
189. Termination of foster care [...inserted by Act 2007_041_010]
190. Regulations [...inserted by Act 2007_041_010]

CHAPTER 13. CHILD AND YOUTH CARE CENTRES
191. Child and youth care centres [...inserted by Act 2007_041_010]
192. Strategy to ensure sufficient provision of child and youth care centres [...inserted by Act 2007_041_010]
193. Protection of child and youth care centres [...inserted by Act 2007_041_010]
194. National norms and standards for child and youth care centres [...inserted by Act 2007_041_010]

Part 1. Establishment and registration of child and youth care centres [...inserted by Act 2007_041_010]
195. Establishment of child and youth care centre by organ of state [...inserted by Act 2007_041_010]
196. Existing government children's home, place of safety, secure care facility, school of industry and reform school [...inserted by Act 2007_041_010]
197. Establishment of child and youth care centre [...inserted by Act 2007_041_010]
198. Existing registered children's home and registered shelter [...inserted by Act 2007_041_010]
199. Application for registration or renewal of registration [...inserted by Act 2007_041_010]
200. Consideration of application [...inserted by Act 2007_041_010]
.
201. Conditional registration [...inserted by Act 2007_041_010]
202. Amendment of registration [...inserted by Act 2007_041_010]
203. Cancellation of registration [...inserted by Act 2007_041_010]
204. Notice of enforcement [...inserted by Act 2007_041_010]
205. Voluntary closure of child and youth care centre [...inserted by Act 2007_041_010]
206. Child in child and youth care centre to be closed [...inserted by Act 2007_041_010]
207. Appeal against and review of certain decisions [...inserted by Act 2007_041_010]

Part 2. Operation and management of child and youth care centre
208. Management board [...inserted by Act 2007_041_010]
209. Manager and staff of child and youth care centre [...inserted by Act 2007_041_010]
210. Management system [...inserted by Act 2007_041_010]
211. Quality assurance process [...inserted by Act 2007_041_010]

Part 3. Miscellaneous
212 Regulations [...inserted by Act 2007_041_010]

CHAPTER 14. DROP-IN CENTRES
213 Drop-in centres [...inserted by Act 2007_041_010]
214 Strategy concerning drop-in centres [...inserted by Act 2007_041_010]
215 Provision of drop-of centres [...inserted by Act 2007_041_010]
216 National norms and standards for drop-in centres [...inserted by Act 2007_041_010]
217 Drop-in centres to be registered [...inserted by Act 2007_041_010]
218 Application for registration and renewal of registration [...inserted by Act 2007_041_010]
219 Consideration of application [...inserted by Act 2007_041_010]
220 Conditional registration [...inserted by Act 2007_041_010]
221 Cancellation of registration 
222 Notice of enforcement [...inserted by Act 2007_041_010]
223 Appeal against and review of certain decisions [...inserted by Act 2007_041_010]
224 Record and inspection of and provision for drop-in centres [...inserted by Act 2007_041_010]
225 Assignment of functions to municipality [...inserted by Act 2007_041_010]
226 Serious injury, abuse or death of child in drop-in centre [...inserted by Act 2007_041_010]
227 Regulations [...inserted by Act 2007_041_010]

CHAPTER 15. ADOPTION
228.  Adoption
229. Purposes of adoption
230. Child who may be adopted
231. Persons who may adopt child
232. Register on Adoptable Children and Prospective Adoptive Parents
233. Consent to adoption
234. Post adoption agreements
235. Freeing Orders
236. When consent not required
237. Gathering of information for proposed adoption
238. Notice to be given of proposed adoption
239. Application for adoption order
240. Consideration of adoption application
241. Unreasonable withholding of consent
242. Effect of adoption order
243. Rescission of adoption order
244. Effect of rescission
245. Recording of adoption in births register
246. Registration of birth and recording of adoption of child born outside Republic
247. Adoption register
248. Access to adoption register
249. No consideration in respect of adoption
250. Only certain persons allowed to provide adoption service
251. Accreditation to provide adoption service
252. Advertising
252A. Review of decision to remove child without court order [...inserted by Act 2016_017_006_20170119]

CHAPTER 16. INTER-COUNTRY ADOPTION
254. Purposes of Chapter
255. International co-operation
256. Hague Convention on Inter-country Adoption to have force of law
257. Central Authority
258. Performance of functions
259. Accreditation to provide inter-country adoption services
260. Entering into adoption working agreement
261. Adoption of child from Republic by person in convention country
262. Adoption of child from Republic by person in non-convention country
263. Issue of adoption compliance certificate
264. Adoption of child from convention country by person in Republic
265. Adoption of child from non-convention country by person in Republic
266. Recognition of inter-country adoption of child from convention country
267. Evidentiary value of adoption compliance certificate of convention country
268. Recognition of inter-country adoption of child from non-convention country
269. Effect of recognition of inter-country adoption
270. Refusal to recognise inter-country adoption or Article 27 decision
271. Application to children’s court for inter-country adoption of child
272. Access to information
273. Processing or facilitating inter-country adoption

CHAPTER 17. CHILD ABDUCTION
274. Purposes of Chapter
275. Hague Convention on International Child Abduction to have force of law
276. Central Authority
277. Delegation of powers and duties
278. Powers of court
279. Legal representation
280. Regulations

CHAPTER 18. TRAFFICKING IN CHILDREN
281. [...repealed by Act 2013_007_048 Sch - was entitled "Purposes of Chapter"]
282. [...repealed by Act 2013_007_048 Sch - was entitled "UN Protocol to Prevent Trafficking in Persons to have force of law"]
283. [...repealed by Act 2013_007_048 Sch - was entitled "International co-operation"]
284. [...repealed by Act 2013_007_048 Sch - was entitled "Trafficking in children prohibited"]
285. [...repealed by Act 2013_007_048 Sch - was entitled "Behaviour facilitating trafficking in children prohibited"]
286. [...repealed by Act 2013_007_048 Sch - was entitled "Assistance to child who is victim of trafficking"]
287. [...repealed by Act 2013_007_048 Sch - was entitled "Trafficking of child by parent, guardian or other person who has parental responsibilities and rights in respect of child"]
288. [...repealed by Act 2013_007_048 Sch - was entitled "Reporting of child who is victim of trafficking"]
289. [...repealed by Act 2013_007_048 Sch - was entitled "Child who is victim of trafficking found in Republic"]
290. [...repealed by Act 2013_007_048 Sch - was entitled "Repatriation of child who is victim of trafficking"]
291. [...repealed by Act 2013_007_048 Sch - was entitled "Extra-territorial jurisdiction"]

CHAPTER 19. SURROGATE MOTHERHOOD
292. Surrogate motherhood agreement must be in writing and confirmed by High Court
293. Consent of husband, wife or partner
294. Genetic origin of child
295. Confirmation by court
296. Artificial fertilisation of surrogate mother
297. Effect of surrogate motherhood agreement on status of child
298. Termination of surrogate motherhood agreement
299. Effect of termination of surrogate motherhood agreement
300. Termination of pregnancy
.
SECTION TITLE
301. Payments in respect of surrogacy prohibited
302. Identity of parties
303. Prohibition of certain acts
304. Inspection of child and youth care centre, partial care facility, shelter and drop-in centre
305. Offences

CHAPTER 21. ADMINISTRATION OF ACT
306. Regulations
307. Delegation of powers and duties by Minister
308. Assignment of powers and duties by Minister
309. Delegation of powers and duties by MECs for social development
310. Delegation of powers and duties by Director-General
311. Delegation of powers and duties by provincial heads of social development
312. Agency agreements

CHAPTER 22. MISCELLANEOUS MATTERS
313. Amendment of laws
314. Transitional matters
315. Short title and commencement
Sch. 1. SCHEDULE 1. HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION (29 May 93) [s1]
Sch. 2. SCHEDULE 2. HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION [s1]
Sch. 3. SCHEDULE 3. TEXT OF THE UN PROTOCOL TO PREVENT TRAFFICKING IN PERSONS [s1] [...repealed by Act 2013_007_048_20130729 Sch]
Sch. 4. SCHEDULE 4. [s313]
 
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